Thoughts on recent Ninth Circuit and California appellate cases from Professor Shaun Martin at the University of San Diego School of Law.

Monday, March 24, 2008

Foulon v. Klayman & Toskes (9th Cir. - March 24, 2008)

This doesn't happen every day. Indeed, it's sufficiently rare that it took me quite a while to figure out even what happened.

It's a forum selection clause issue. The parties briefed the case in 2005, and argued it in Seattle before a three-judge panel on November 17, 2006. Then, almost a year later, in September 2007, before issuing a ruling, the panel asked the parties to brief whether the case should be decided en banc. At which point both of the parties said: "No." To which the Ninth Circuit appropriately responded, two months later, by taking the case en banc. Sweet.

As they say, however, you can lead a horse to water, but you can't make it drink. The Ninth Circuit sets the oral argument for March 26th (the day after tomorrow) in San Francisco. But guess what? The parties don't feel like showing up. As a result, presumably as a result of a settlement, today, two days before oral argument, the Ninth Circuit dismissed the appeal.

Hope those tickets to San Francisco were refundable, judges! (Just kidding. I know you guys are going there anyways. And now 11 of you have got an extra couple of hours to hang out!)